Blood Donor Regulations and Men who have Sex with Men: Is this Kind of Discrimination Necessary?

Posted By Lauren Hanon

As anyone who has donated blood knows, Canadian Blood Services (CBS) and Héma-Québec ask a lot of questions to help determine a potential donor’s eligibility for blood donations. People can be exposed to all kinds of risks related to blood safety, and these questions are supposed to weed out risk factors as much as possible.

Inevitably, all screening of potential blood donors is discriminatory in one way or another, and this discrimination is justified because of safety concerns for blood supplies. But the real question here is whether the current blanket discrimination against men who have sex with men (MSM) can actually be justified in this way.

Charter challenges

As medical science and technology have progressed and improved in the last 30 years, and as blood supplies in Canada have been critically low, donor regulation policies have seen quite a bit of change. LGBTTQ groups have expressed strong views in favor of removing the 5-year deferral period (or significantly reducing it further) because the deferral period unfairly lumps people who practice safe sex and who know the sexual history of their partners with people who practice the high-risk sexual behavior that Question # 18 supposedly aims to filter out.

This argument was advanced in Canadian Blood Services v Freeman (2010). Freeman had donated blood to Canadian Blood Services (CBS) on multiple occasions from 1990 to 2002, and each time he misrepresented his sexual history on the screening questionnaire, claiming that he had not had sex with another man since 1977, when in fact he had. CBS sued for negligent misrepresentation. Freeman countersued, arguing that the screening question was discriminatory on the basis of sexual orientation, and that it therefore infringed on his s. 15 Charter rights. The court ultimately awarded damages to CBS and dismissed Freeman’s counterclaim. The court’s reasoning was that CBS is not a governmental entity, not under government control, and therefore not subject to the Charter. Further, even if CBS were a governmental entity, donating blood is not a right protected under the Charter, and Freeman could not demonstrate a benefit or a burden that is provided or imposed by the law.

Disproportionate concern surrounding MSM and risk to the blood supply?

A central concern that came out of the Report and the consultations was the issue of emerging pathogens. An emerging pathogen is “an infectious agent whose incidence has increased or threatens to increase in the near future…they may also be new, previously unknown agents.” Identifying emerging pathogens in blood donations differs from identifying the presence of HIV, HCV, or HBV infections, because there is an established time period between infection and detection of a pathogen (a known “window period”) to allow for effective testing of the three infections, whereas there is too much that is unknown when it comes to emerging pathogens and risk-analysis. A blood test can only test for something specific. If there is an unknown pathogen present in a blood sample, it cannot be tested for and thus would go undetected into the blood supply.

The CBS Report claims that only the sexually transmitted emergent pathogens would “have a higher incidence in the MSM population.” This report distinguishes between safe sex practices and higher-risk practices. Further, 68 agents of emergent pathogens were identified in CBS’s 2009 Report, each being assigned a risk priority level. The 2012 Report highlights 16 of these agents, and claims that MSM is only a risk factor for one agent, in the second lowest priority level category indicating concern. Moreover, the Report claims that very few of these agents are sexually transmitted. This would suggest that there is a disproportionate amount of concern surrounding MSM with regards to risk factors, especially when the safety of sexual behaviour is taken into account. These findings do not seem to be reflected in the current way that potential blood donors are being screened.

Question #18’s goal is to screen out people who engage in high-risk behaviour, and the epidemiological research that supposedly supports this goal are findings like the Public Health Agency of Canada’s Estimates of HIV Prevalence and Incidence in Canada, 2011, which found that MSM make up 46.7% of all individuals infected with HIV. However, whereas the high-risk behaviour that this question aims to screen out is related more to the safety of sex practices for sexually transmitted infections, rather than a person’s sexuality, the question unjustly targets a person’s sexuality, and not the safety of their sex practices.

Conclusion: policy considerations

Currently, the Canadian blood inventory is at its lowest since 2008. In the United States, a 2014 study conducted by the Williams Institute claimed that “[i]f MSM who have not had sexual contact with another man in the past twelve months were permitted to donate […] 185,808 additional men are likely to donate 317,000 additional pints of blood each year.” Such a policy modification would likely have similar outcomes in Canada. Our blood supply is critically low and there are a large number of potential blood donors that are not permitted to donate. The safety of the blood supply is of utmost importance, but a person’s sexuality in and of itself does not pose any danger. In order for any changes to blood donation operations to occur, CBS and Héma-Québec must submit a proposal of changes to Health Canada because they are under the direction of the regulation and policies of Health Canada and therefore may not modify or change the donor screening process. Given the current state of blood supply and donor regulations, this topic warrants much more discussion and evidence-based policies that keep in mind all of the stakeholders and communities.